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United States v. Merrell

United States Court of Appeals, Eighth Circuit

November 18, 2016

United States of America Plaintiff- Appellee
v.
Roxanne Merrell Defendant-Appellant

          Submitted: October 20, 2016

         Appeal from United States District Court for the District of Minnesota - St. Paul

          Before MURPHY, GRUENDER, and SHEPHERD, Circuit Judges.

          MURPHY, Circuit Judge.

         Roxanne Merrell was convicted by a jury of two counts of producing child pornography in violation of 18 U.S.C. § 2251(a) and (e). The district court[1] sentenced Merrell to 240 months imprisonment on each count, to be served concurrently. Merrell appeals, challenging various aspects of her trial and sentencing proceeding. We affirm.

         I.

         In 2013 the Department of Homeland Security (DHS) began investigating Travis Guenthner for the production of child pornography. The DHS investigation ultimately uncovered 50, 000 photographs and 90 videos of suspected child pornography on Guenthner's various computers and devices. That same year Guenthner pled guilty to five counts of sexual exploitation of minors and two counts of coercion or enticement and was sentenced to life in prison.

         Among the child pornography found in Guenthner's possession was a folder containing sexually explicit photographs of the torso region of a prepubescent girl (Minor A). A woman's hands are visible in some of the images in the folder, sometimes spreading Minor A's genitals apart. Through forensic examinations the investigators determined that these photos were created in 2010.

         In 2014 Guenthner told investigators that Merrell had sent him the images of Minor A and that she had produced the images at his request. Law enforcement officers then obtained two search warrants, one for Merrell's home and the other for the search of "[t]he person of Roxanne Merrell, specifically body views and photography of her hands." Merrell was interviewed by officers during the execution of the warrants. In her recorded interview, she admitted that she had taken the pictures of Minor A sleeping and that her own hands appeared in the photographs. Officers took Merrell to a police station after this interview and recorded 47 photographs of her hands.

         Merrell was indicted on two counts of production of child pornography in violation of 18 U.S.C. § 2251(a) and (e). At trial, the government elicited the testimony of federal agents and introduced audio clips of Merrell's initial interview with law enforcement officers and cell phone records indicating that she and Guenthner had telephoned each other around the time of the alleged offenses. The government also called special agent James Cole as an expert witness. Over Merrell's objections, Cole testified that it was likely that the adult hands visible in the photographs of Minor A were hers.

         The government also called Matthew Stephenson, a child protection worker who had conducted a videotaped interview of Minor A prior to trial. When asked on direct examination about Minor A's reaction when she saw one of the photos of herself found in Guenthner's possession, Stephenson testified that "[Minor A] seemed shocked and confused." On cross examination, Stephenson testified about the questions he had posed to Minor A in the interview, but not her answers. After the government rested, Merrell attempted to introduce the videotape of Stephenson's interview of Minor A. The district court excluded the videotape as hearsay.

         The jury found Merrell guilty on both counts. At sentencing the district court determined that the applicable guideline range was 360 months to life, but varied downward and imposed a sentence of 240 months imprisonment on each count, to be served concurrently. Merrell appeals.

         II.

         Merrell first argues that the district court[2] erred by denying her motion to suppress the 47 photographs of her hands taken during execution of the search warrant. When reviewing the denial of a suppression motion, the district court's findings of fact are examined for clear error and its conclusions of law are reviewed de novo. United States v. Castellanos, 608 F.3d 1010, 1015 (8th Cir. 2010). Since there is no dispute about the ...


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